A
defendant can only benefit from a defence based on voluntary or
involuntary intoxication if the court is convinced that because of being
intoxicated the defendant lacked the required mens
rea, R v Kingston
[1994] HL.

Policy issue

If a defendant could simply claim
intoxication as a defence, and be completely exonerated every crook would
have a drink before a crime spree, and then, when arrested claim
intoxication and be automatically acquitted.

The leading case on intoxication is DPP v
Majewski (1977) HL

In
Majewskiit was contended that if intoxication affected the mind
of the defendant it was illogical and unethical to distinguish between its
effect on one state of mind and on another.

It was argued that there is no permissible distinction between offences of
basic intent and those of specific intent.

The Crown contended that that distinction had nevertheless represented the
law of England for many years. The House upheld the Crown's contention. It
did so in the full knowledge that it was not perfectly logical. It so
held, in large measure, on grounds of policy.

As was observed by several of their Lordships, historically the law of
England regarded voluntary intoxication as an aggravation rather than a
potential excuse and the development of the law had been by way of a
partial, but only a partial, relaxation of that common law rule where a
specific intent was required.

Where
D fortifies himself with alcohol to gain the courage to commit a crime
this is known as Dutch Courage and is no defence.

Only
for crimes of specific intent

Intoxication
can only be used to negative mens reain crimes of specific intent.

Courts
have applied the distinction between specific and basic intent
inconsistently.

What
is specific intent?

A
crime that requires the defendant to intend some unlawful consequence
specifically identified in the offence e.g. Sec 18 OAP 1861.Wounding or grievous bodily harm with intent
to cause grievous bodily harm, or resist arrest.

What
is basic intent?

Intoxication
no defence to crimes of strict liability

For
most purposes, it means all other assaults and criminal damage.

(Incidentally,
intoxication is not defence to drink driving because that is a crime of
strict liability).

Any crime that contains
‘recklessness’ in the offence will be basic intent crime (Lord
Edmund-Davies in Caldwell)

But…

Drinking may genuinely reduce inhibitions and may cause a defendant to act
differently from the way he would but for his state of intoxication.

By pleading intoxication, it can make
an otherwise valid defence of mistake or failure to foresee an obvious
risk or automatism more difficult to argue in practice.

It is immaterial that the accused may
have misjudged how drunk or drugged be would become.

(The rules we are discussing do not
apply where a defendant takes drink or drugs under medical supervision or
direction)

A person who thought he was drinking orange juice but which another had
spiked with quantities of vodka would be involuntarily
intoxicated.

He would be able to plead lack of mens
rea because he was drunk and so incapable of forming the necessary
intent.

Problems categorising offences as basic
or specific intent

It should not be supposed that every offence can be categorised simply as
either one of specific intent or of basic intent.

So to categorise an offence may conceal the truth that different elements
of it may require proof of different states of mind.

In the law of rape, as it stood immediately before the passing of the
Sexual Offences Act 2003, rape was sexual intercourse with a woman who
did not in fact consent, by a man who either knew she did not or was
reckless as to whether she did. No-one doubted that the act of intercourse
could only be committed intentionally.

But when it came to the defendant's state of mind as to the woman's lack
of consent, either knowledge or recklessness sufficed for guilt:
section 1 Sexual Offences (Amendment) Act 1976.

Many other examples of the point could be cited. The current legislative
practice of itemising separately different elements of offences created by
statute, which is much exhibited in the Sexual Offences Act 2003.

Involuntary intoxication

Distinction between strict and basic intent disappears

The
advantage to a defendant arguing involuntary intoxication is that it
avoids the restrictive rules of 'specific' and 'basic' crimes in voluntary
intoxication.

He
still has to prove he did not have the necessary intent.

Voluntary intoxication by taking drugs

The
courts complicated the rules on intoxication by distinguishing between
‘dangerous drugs’ and 'non dangerous drugs' in
R v Bailey
[1983] CA

R v Hardie
[1985]CAthe court considered an accused,
charged with an offence of Criminal Damage Act 1971.He had taken a number of Valium tablets (which were prescribed for
someone else).

Held:
that this did not necessarily amount to voluntary intoxication.

"[Valium
is] wholly different in kind from drugs which are liable to cause
unpredictability or aggressiveness . . . . if the effect of a drug is
merely soporific or sedative the taking of it, even in some excessive
quantity, cannot in the ordinary way raise a conclusive presumption
against the admission of proof of intoxication for the purpose of
disproving mens rea." . . .[The jury] should have been directed
that if they came to the conclusion that, as a result of the Valium, the
appellant was, at the time, unable to appreciate the risks to property
and persons from his actions they should then consider whether the taking of the
Valium was itself reckless."

Non-dangerous drugs

Valium
is an example of 'non-dangerous drug'.

Dangerous
drugs

'Dangerous' drugs include those where it is ‘common knowledge’ that the
taker ‘may become aggressive or do dangerous or unpredictable things’
or make D incapable of
appreciating risks
(amphetamines and LSD being well known examples).

In these cases there may be recklessness in
self-administering it which would be the case when the drug was well known
for causing the effects. In these cases the jury can consider the taking
of the drug itself to be reckless,
R v Hardie
[1985]CA
and R v Bailey
[1983] CA.

If they find against the defendant on this issue, then, pursuant to R v
G (2003) HL, they will still have to go on to decide whether the
defendant would have aware of the relevant risk had he not taken the drug.

Knowingly
taking a ‘dangerous’ drug

Counts
as voluntary intoxication.

When the mens rea in issue is recklessness
and the defendant was intoxication (self-induced) and he says he was
unaware of a risk, but he would have been aware of the risk if he were
sober, he is to be treated as if he had been aware of that risk.

R v Sheehan and Moore CA

"In cases where drunkenness and its
possible effect upon the defendant's mens rea is in issue, ... the
proper direction to a jury is, first, to warn them that the mere fact
that the defendant's mind was affected by drink so that he acted in a
way in which he would not have done had he been sober does not assist
him at all, provided that the necessary intention was there.

"A
drunken intent is nevertheless an intent. Secondly, and subject to this,
the jury should merely be instructed to have regard to all the evidence,
including that relating to drink, to draw such inferences as they think
proper from the evidence, and on that basis to ask themselves whether
they feel sure that at the material time the defendant had the requisite
intent"

Taking
a ‘non-dangerous’ drug

Is
governed by a similar rule to self-induced automatism. It depends on the
actual knowledge of the offender as to the likely effects of the drug.

We
now await further clarification of drugs into dangerous and non-dangerous.

Automatism caused by intoxication

The
law imposes serious restrictions on the defence of automatism.

Voluntary
intoxication which causes automatism

A
self-induced incapacity will not provide a defence of automatism.

Foreseeable
automatism

Nor
will a defence of automatism succeed which could have been reasonably
foreseen.

For
example, taking alcohol against medical advice after using certain
prescribed drugs, or failing to have regular meals while taking insulin.

A
defence based on automatism caused by hypoglycaemia failed (the same
argument could have been used for the effects of alcohol).

Held:

"In our judgment, self-induced
automatism, other than that due to
intoxication from alcohol or drugs, may provide a defence to
crimes of basic intent. The question in each case will be whether the
prosecution has provided the necessary element of recklessness. In
cases of assault, if the accused knows that his actions or inaction
are likely to make him aggressive, unpredictable or uncontrolled with
the result that he may cause some injury to others and he persists in
the action or takes no remedial action when he knows it is required, it
will be open to the jury to find that he was reckless."

Automatism
caused by alcohol when D is at fault, no defence

The
authorities seem to be clear that automatism due to voluntary intoxication
is not available to the defence if the accused was at fault.

Furthermore,
it is not available at all to an offence of specific intent.

(Think
of Sec 18 OPA 1861 (intent to cause grievous bodily harm).The accused would have to intend to become violent through failure
to take food for the court to deprive him of the defence of automatism, cf.
the Dutch Courage Rule.)

Other
crimes of specific intent

Offences
of specific intent include murder, wounding with intent, theft, handling
stolen goods, indecent assault where an indecent purpose must be proved,
and all attempts.